Citation Nr: 0842166
Decision Date: 12/08/08 Archive Date: 12/17/08
DOCKET NO. 07-24 262A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to a waiver of recovery of an overpayment of
Chapter 30 educational assistance benefits in the amount of
$718.99, to include the preliminary issue of the validity of
the debt.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
Paul S. Rubin, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1991 to
March 1996.
This appeal to the Board of Veterans' Appeals (Board) is from
a March 2007 decision by the Committee on Waivers and
Compromises (Committee) of the Department of Veterans Affairs
(VA) Regional Office (RO) in Atlanta, Georgia.
FINDING OF FACT
The overpayment was solely the result of VA administrative
error; the veteran's actions nor his failure to act did not
contribute to the creation of the debt.
CONCLUSION OF LAW
The overpayment of Chapter 30 educational assistance benefits
in the amount of $718.99 was based solely upon VA
administrative error, such that the debt was not valid and
the overpayment was not properly created. 38 U.S.C.A. §§
5112, 5302 (West 2002 & Supp. 2008); 38 C.F.R. §§ 1.956,
1.962, 3.500, 21.5824(a) (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. § 5100 et seq. (West 2002), is not applicable to
claims for waiver of recovery of overpayment. Barger v.
Principi, 16 Vet. App. 132, 138 (2002). See also Lueras v.
Principi, 18 Vet. App. 435 (2004) (the VCAA does not apply to
a waiver). Thus, any discussion as to VCAA compliance is not
required. In any event, since the Board is granting the
claim, there is no need to discuss in detail whether there
has been compliance with the notice and duty to assist
provisions of the VCAA because even if, for the sake of
argument, there has not been, this is inconsequential and,
therefore, at most harmless error. See 38 C.F.R. § 20.1102.
Governing Law and Regulations
An eligible veteran is entitled to a monthly benefit for
periods of time during which he is enrolled in, and
satisfactorily pursuing, an approved program of education.
38 U.S.C.A. § 3104; 38 C.F.R. § 21.7070. VA will pay
educational assistance to an eligible veteran while he is
pursuing approved courses in a program of education. 38
C.F.R. § 21.7130.
An overpayment is created when VA determines that a
beneficiary or payee has received monetary benefits to which
he or she is not entitled. See 38 U.S.C.A. § 5302; 38 C.F.R.
§ 1.962. An overpayment may arise from virtually any
benefits program administered pursuant to VA law, including
pension, compensation, dependency and indemnity compensation
(DIC), educational assistance benefits and subsistence
allowance, insurance benefits, burial and plot allowances,
clothing allowance, and automobile or other conveyance and
adaptive equipment allowances. 38 C.F.R. § 1.956(a).
The amount of overpayment of educational assistance paid to a
veteran constitutes a liability of that veteran. 38 C.F.R. §
21.7144(b). An individual who is receiving educational
assistance under programs authorized by 38 U.S.C. Chapters
30, 31, 32, 34, 35 or 36 may not receive concurrently either
educational assistance or subsistence allowance under the §§
21.5700, 21.5800 and 21.5900 series of regulations for the
same program of education, but may receive them sequentially.
38 C.F.R. § 21.5824(a).
A request for waiver of indebtedness must be made within 180
days following the date of notice of the indebtedness issue
by VA to the debtor. 38 C.F.R. § 1.962(b)(2).
The preliminary issue of the validity of a debt is a
threshold determination that must be made prior to a decision
on a request for waiver of the indebtedness. See Schaper v.
Derwinski, 1 Vet. App. 430 (1991). VA's General Counsel has
reinforced this obligation by holding that where the validity
of a debt is challenged that issue must be developed before
the issue of entitlement to waiver of the debt can be
considered. VAOGCPREC 6-98.
In order for the Board to determine that the overpayment was
not properly created, such that the debt was not valid, it
must be established that the veteran was legally entitled to
the benefits in question or, if there was no legal
entitlement, then it must be shown that VA was solely
responsible for the veteran being erroneously paid benefits.
Administrative errors include all administrative decisions of
entitlement, whether based upon mistake of fact,
misunderstanding of controlling regulations or instructions,
or misapplication of law. VAOPGPREC 2-90 (July 17, 1989), 55
Fed. Reg. 27757 (1990). Sole administrative error connotes
that the appellant neither had knowledge of nor should have
been aware of the erroneous award. Further, neither the
veteran's actions nor his failure to act must have
contributed to payment pursuant to the erroneous award. 38
U.S.C.A. § 5112(b) (9), (10) (West 2002 & Supp. 2008); 38
C.F.R. § 3.500(b)(2) (2008); Jordan v. Brown, 10 Vet. App.
171 (1997) (sole administrative error is not present if the
payee knew, or should have known, that the payments were
erroneous). Thus, a finding of sole administrative error
requires not only error on the part of VA, but that the
beneficiary is unaware that the payments are erroneous.
The United States Court of Appeals for Veterans Claims
(Veterans Court) noted that, "[s]tated another way, when an
overpayment has been made by reason of an erroneous award
based solely on administrative error, the reduction of that
award cannot be made retroactive to form an overpayment debt
owed to VA from the recipient of the erroneous award."
Erickson v. West, 13 Vet. App. 495, 499 (2000).
In other words, if a debt is the result solely of
administrative error, the effective date of the reduction of
benefits is the date of the last payment based on this error
and, consequently, there would be no overpayment charged to
the veteran for an overpayment attributable to administrative
error. 38 U.S.C.A. § 5112(b)(10); 38 C.F.R. § 3.500(b).
Where, however, an erroneous award is based on an act of
commission or omission by a payee or with the payee's
knowledge, the effective date of the discontinuance of the
erroneous payment is the date the award became erroneous, but
not earlier than the date entitlement ceased. 38 U.S.C.A.
§ 5112(b)(9); 38 C.F.R. § 3.500(b).
Pertinent Facts
In April 2005, the veteran was certified by the VA to receive
education benefits for on-the-job training as a firefighter.
The duration approved by VA was from February 28, 2005
through August 27, 2006, for a period of 18 months.
In November 2005, the VA received an enrollment certification
for a 3 credit class the veteran was taking at Kennesaw State
University for the time period from January 6, 2006 through
May 7, 2006.
From January through May 2006, the veteran received education
assistance benefits on a monthly basis for his on-the-job
training as a firefighter. The claims folder contains
monthly certifications that he actually attended his on-the-
job training.
In March 2006, the veteran was also provided a lump sum
payment of $718.99 for education benefits based on his 3
credit class enrollment at Kennesaw State University for the
same time period as his on-the-job training.
In July 2006, the VA advised the veteran that he was overpaid
for his education assistance benefits in the amount of
$718.99, a debt the veteran had to repay.
In November 2006, the veteran requested a waiver of this
overpayment. He also submitted an accompanying Financial
Status Report (FSR, VA Form 20-5655).
In March 2007, the Committee denied the veteran's waiver
request. The Committee held that the veteran was not
permitted to receive duplicate education assistance allowance
payments for the same period of time (January 6, 2006 through
May 7, 2006). Only one educational pursuit was permitted at
any given time for receiving VA education assistance
benefits. Thus, he was not entitled to the lump sum payment
of $718.99 for education benefits based on his 3 credit class
enrollment at Kennesaw State University. The Committee
confirmed the denial in the July 2007 statement of the case
(SOC). The veteran subsequently perfected the appeal to the
Board.
Analysis
During the course of this appeal, especially in his initial
November 2006 waiver request, the veteran has challenged the
validity of the debt. In addition, in the October 2007
Statement of Accredited Representative in Appealed Case (VA
Form 646), the representative indicated that the overpayment
was due to VA administrative error, signifying that a
creation issue has been raised. As such, the Board will
initially address the threshold issue of whether there is a
valid debt. See Schaper, supra.
It is initially worth noting that the veteran's November 2006
waiver request was timely, as it was submitted within 180
days of the July 2006 notice of indebtedness sent by RO as
well as the Debt Management Center (DMC). See 38 C.F.R.
§ 1.962(b)(2).
It is clear from the evidence of record that the veteran was
not legally entitled to the benefits in question. An
individual who is receiving educational assistance under
programs authorized by 38 U.S.C. Chapters 30, 31, 32, 34, 35
or 36 may not receive concurrently either educational
assistance or subsistence allowance under the §§ 21.5700,
21.5800 and 21.5900 series of regulations for the same
program of education, but may receive them sequentially.
38 C.F.R. § 21. 5824(a). In view of this regulation, the
veteran was not legally entitled to receive VA education
benefits for both on-the-job training and school enrollment
during the same time period from January 6, 2006 through May
7, 2006. Yet, the VA still awarded the veteran both sets of
education benefits during this time period. However, after
an investigation, in July 2006, the VA considered the lump
sum amount of $718.99 for his tuition to be an overpayment,
since he already had received monthly benefits for on-the-job
training during this same time period. Since the veteran had
no legal entitlement to the education benefits in the amount
of $718.99, then in order to substantiate the veteran's claim
that the overpayment was not properly created, it must be
demonstrated that VA was solely responsible for the veteran
being erroneously paid such benefits.
Upon review of the evidence of record, the Board finds that
the overpayment was created solely as a result of VA
administrative error and it cannot, therefore, be held to
have been properly created. It is clear that the veteran
timely informed VA both of his on-the-job training program
(in April 2005) and his 3 credit class enrollment at Kennesaw
State University (in November 2005). Notwithstanding, the VA
still approved the veteran for education benefits for both
programs from January to May of 2006. This overpayment was
the result of VA administrative error. In order for the
overpayment to be considered the result of sole
administrative error, and for the veteran to consequently not
be liable for the debt, the veteran must not have known, or
should have known, that the payments were erroneous. The
veteran credibly stated in his November 2006 waiver request
and his May 2007 notice of disagreement that he was unaware
that the double payment was erroneous. He does not recall
signing any document stating he was not allowed to receive
payment for two separate programs that the VA approved, and
he was never advised as such. The Board has thoroughly
reviewed the claims folder, and can locate no document or
correspondence prior to the payments being made advising the
veteran that only one educational pursuit was permitted at
any given time for purposes of receiving VA education
assistance benefits. In fact, the veteran indicates the very
first time he had any reason to suspect that he might have
been overpaid was in June 2006 when the VA put a hold on his
May 2006 payment for on-the-job training as the result of an
investigation. He did not receive any formal notice of the
overpayment from the VA until July 2006, subsequent to all
payments being made. In addition, the first evidence the
veteran was provided with the substance of the applicable
regulation barring double payments, (38 C.F.R. § 5824(a)),
was in the July 2007 SOC.
The evidence of record does not demonstrate that the veteran
had knowledge that he was receiving benefits to which he was
not entitled or that he otherwise acted or failed to act in
such a way as to perpetuate the error. Accordingly, the
Board finds that the overpayment was solely the result of VA
administrative error, and that the debt in the amount of
$718.99 therefore was not properly created and cannot legally
be charged to the veteran. Erickson v. West, 13 Vet. App.
495 (2000) (holding that when an overpayment has been made by
reason of an erroneous award based solely on administrative
error, the reduction of that award cannot be made retroactive
to form an overpayment debt owed to VA from the recipient of
the erroneous award).
In view of the finding that the overpayment resulted solely
as a result of VA administrative error, the Board finds that
the RO's decision to attempt to recover the $718.99 was
improper and that the debt is not a valid debt to VA. 38
U.S.C.A. § 5112(b) (9), (10) (West 2002 & Supp. 2008); 38
C.F.R. § 3.500(b)(2) (2008); Jordan v. Brown, 10 Vet. App.
171 (1997).
ORDER
The debt in question was not properly created, such that
waiver of the recovery of an overpayment of Chapter 30
educational assistance benefits in the amount of $718.99 is
granted.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs